Role Playing Convention defamation case can go ahead

In Smith v. Gen Con LLCthe court allowed plaintiff’s defamation action:

Zak Smith is an artist who began developing tabletop role-playing games (“RPGs”) in 2010. Smith has been successful in the world of RPGs, winning prestigious awards, successfully developing and selling his own games, and consulting on Top RPGs such as Dungeons & Dragons. Smith generated a substantial portion of his income from RPG development and consulting.

Gen Con is “North America’s largest and longest running tabletop gaming convention”, hosting approximately “70,000 RPG developers, producers, makers, consultants, and fans each year. [who] unveil their new releases, gain recognition and publicity in the RPG industry, and engage in activities to promote themselves, their games, and their businesses.” “For consultants, developers, and producers of [RPGs] to succeed in this industry, they must attend Gen Con. ” Peter Adkison is co-owner and chairman of the board of Gen Con. Smith has been involved with Gen Con for many years and “has generated a significant portion of his professional and business relationships, consulting jobs, sales, and other business interests in the RPG industry from the event. »

In February 2019, Smith’s ex-wife made a Facebook post accusing Smith of sexual assault during their marriage. Smith alleges, and we must assume for the purposes of this appeal, that these accusations are false.

Shortly after Smith’s wife made the Facebook post, Adkison released a statement on the Gen Con website:

At Gen Con, it is our policy not to release the names of individuals who have been sanctioned or banned from our events. However, our statements regarding a recent ban have caused confusion and, more importantly, made people feel that Gen Con does not care about the safety of attendees. To clarify, I want to state that Zak S has been banned from Gen Con and we absolutely do not tolerate stalkers or abusers in our community or at our convention.

Adkison posted a link to the statement on his personal Facebook page, saying, “In response to the recent outcry against Zak Smith, I posted an open letter on the Gen Con website disinviting him to Gen Con.” In response to a comment on that post calling Gen Con’s statement a lack of due process, Adkison said, “There was due process which is why it took us so long to come. There was a lot of people abused by Zak, the evidence was overwhelming. I don’t need legal proceedings to rescind the invitation [an] aggressor to my party. Gen Con also linked the statement on their Twitter account in a tweet saying, “Last week we made a statement regarding our stance on abuse and harassment in games. {This apparently refers to an earlier statement Gen Con made in response to the charges against Smith, which did not name Smith or specify that he was banned.} Many of you have told us that this is not wasn’t clear enough and that we need to take a stronger stance. We heard you and want to be clear: Zak S is prohibited from attending.”

As a result of these statements, news of Smith’s ban was reported in a major video game outlet, Smith lost his main game publisher, a game he was working on was suspended, vendors and forums of most relevant games banned Smith, and Smith’s Wikipedia. The page has been modified to reflect current events. Smith lost substantial income, suffered damage to his reputation and suffered emotional distress….

In a defamation case, a plaintiff must establish that the defendant made false statements, that the statements were not privileged, that the defendant was at fault, and that the statements caused nearby damage. The level of fault that must be proven in defamation cases depends on the status of the plaintiff as a public or private person. “If the plaintiff is a public figure or a public official, he must show real malice. If, on the other hand, the plaintiff is a private figure, he only has to show negligence.” “An accused acts maliciously when he knows the statement to be false or recklessly ignores its probable falsity.”

Here, Gen Con and Adkison asserted, and the court determined, that Smith failed to sufficiently plead fault and causation. But Smith’s complaint alleged that Gen Con and Adkison “knew that [the web post, tweet, and Facebook reply were] false, should reasonably have known they were false, and acted maliciously and… with intent, or with despicable conduct, to harm “Smith”. This sufficiently alleged that Gen Con and Adkison were at fault, even though Smith is considered a public figure. “Maliciousness, intent, knowledge and any other state of mind of a person can be proven generally.” Although Smith may not have alleged specific facts prove that Gen Con and Adkison knew or should have known that the statements were untrue is not the issue at the time RC 12(b)(6) arrange.

Furthermore, Smith has sufficiently alleged that there was a causal link. Smith alleged that Gen Con is an important and influential part of the RPG community: that it is “”the largest and oldest tabletop gaming convention in North America”, “attended on average 70,000 people, and that “[f]or consultants, developers and producers of [RPGs] to be successful in this industry, they must attend Gen Con.” Smith alleged that after Gen Con and Adkison made their statements, their statements were reported in at least one media outlet, publishers and vendors stopped working along with Smith, Smith was banned from most relevant gaming forums, and Smith suffered significant damage to his reputation and loss of income, he also alleged that these results were direct and immediate results of the statements of the defendants. This was sufficient to allege causation.

To survive a RC 12(b)(6) motion, Smith was not required to provide evidence showing how the statements caused the specific damages. His complaint only had to include “”direct allegations on every material point necessary to support a recovery… Where contain allegations from which it can reasonably be inferred that evidence on those material points will be presented at trial. “Smith’s statements that Adkison and Gen Con exerted a strong influence in the gaming world and that their statements caused his listed damages were more than sufficient to allege causation.

Gen Con disagrees and argues that Smith’s causation claim is based solely on a coincidence in time, not a demonstration of cause and effect. But while Gen Con is correct that one event preceded another isn’t necessarily enough to prove causation, Smith wasn’t required to. prove causal link in his complaint. Instead, at this stage of the proceedings, he only had to “give the opposing party reasonable notice of what the claim is and the reason on which it is based”. Smith’s complaint gives fair notice of his theory that Gen Con and Adkison’s decision to make their statements public prompted others in the RPG community to take similar action against Smith, causing damage to his reputation and to their means of subsistence….

Defamation per se

A statement is inherently defamatory if it “(1) exposes any living person to hatred, contempt, ridicule or opprobrium, or deprives him of the benefit of public trust or social relations, or (2) injures in his business, trade, profession or office.” “The attribution of a criminal offense involving moral turpitude was held to be clearly defamatory in itself. “Domestic abuse is a crime involving moral turpitude. deals with the rather vague areas of public trust, injury to business, etc., whether it is libel per se should probably be a question of fact for the jury.

We conclude that the court erred in dismissing Smith’s libel action per se. The court found that the statements at issue were not sufficiently “extreme” or “serious” to constitute defamation per se and that Smith had failed to sufficiently allege causation. But the statements may have hurt Smith in his business and framed him for a crime involving moral turpitude. The court therefore erred in determining as a matter of law that the statements were not defamatory per se. Additionally, the court erred in finding that Smith did not allege that the statements caused damage, because if a statement is defamatory in itself, “the damage does not need to be proven”. The court erred in dismissing Smith’s defamation claim per se.

For similar reasons, the court found that plaintiff’s false light and interference with commercial expectation could proceed.

Congratulations to Philip Albert Talmadge and Gary Manca (Talmadge/Fitzpatrick) and Moshe Yiftah Admon (Admon Law Firm, PLLC) for the victory.

About Cedric Lloyd

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